Norwood v. Lee Way Motor Freight, Inc.

1982 OK CIV APP 4, 646 P.2d 2, 1982 Okla. Civ. App. LEXIS 86
CourtCourt of Civil Appeals of Oklahoma
DecidedJanuary 26, 1982
DocketNo. 56159
StatusPublished
Cited by4 cases

This text of 1982 OK CIV APP 4 (Norwood v. Lee Way Motor Freight, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norwood v. Lee Way Motor Freight, Inc., 1982 OK CIV APP 4, 646 P.2d 2, 1982 Okla. Civ. App. LEXIS 86 (Okla. Ct. App. 1982).

Opinion

BOYDSTON, Presiding Judge.

Insuror appeals, from a 29 percent permanent partial disability award on the grounds it is excessive and conflicts with AMA Guidelines. We affirm.

I

Jurisdictional facts are undisputed. This appeal involves only the interpretation of the medical evidence which consists of the deposition and reports by Dr. A. for Claimant, Dr. F. for Insuror and the report of court-appointed Dr. P. Claimant’s injury is to his shoulder and cervical spine.

Dr. F. rated Claimant’s permanent partial disability at zero. Dr. A. rated the injuries at 35 percent to the body in the following manner:

8% ... to the whole person by reason of injury to his cervical spine . . . 13% . . . to the whole person by reason of the injury to his right shoulder....

He then added 14 percent (seven percent to shoulder joint and seven percent to cervical spine) by reason of traumatic aggravation of a pre-existing arthritic condition.

The latter 14 percent element of disability is explained in Dr. A.’s deposition as attributable to trauma-induced permanent elevation and acceleration of a pre-existing arthritic process. The resulting generalized pain creates disability apart from “motion” impairment and central nervous system “pain.” As such, the constituent 14 percent rating is a deviation from the AMA Guides to the Evaluation of Permanent Impairment (Guides).

The court found more than a 30 percent disparity between medical opinions and appointed Dr. P. to examine Claimant.

Dr. P. rated the disability at 14 percent to the upper extremity [arm] which equals eight percent to the whole person [body] and 14 percent to the whole person because of the cervical spine injury. He then combined them [8% + 14%] using the AMA “combined injury” tables found in the Guides for a total impairment rating of 21 percent.

Trial judge found Claimant:

[Sustained 14 percent permanent partial disability to the NECK, 15 percent permanent partial disability to the RIGHT SHOULDER combined to 29 percent permanent partial disability to the BODY AS A WHOLE....

Insurer’s appeal raises two issues, both relating to the proper use of the AMA Guides.

First, did the court properly follow the AMA Guides in interpreting Dr. A.’s report? Insuror argues Dr. A. improperly added the values (8% + 13% + 7% + 7% = 35%) when he should have combined them using the AMA tables and his report is therefore incompetent. Had he combined, his total would have been considerably less than 35 percent. Insuror also argues the court merely added its findings (14% + 15% = 29%) which is equally improper.

Second, do the Guides permit disability rating deviations based on osteoarthritic aggravation such as that described by Dr. A.? Such a deviation appears to overlap both the “central nervous system” pain rating section of the Guides and the “loss of motion” standards used to determine impairment. If this is so, Claimant’s injury may unfairly include a percentage for pain-derived disability twice — once for the loss in range of motion (pain in many cases causes the lost range) and again as a general but enduring pain which decreases work efficiency thereby contributing to a general disability.

[4]*4II

The problem relative to rating the shoulder injury appears to be more complex than it is in reality. It is simply the result of different methods being used by doctors in reporting their estimation of disability. Dr. P. evaluated it in detail by dividing the impairment ratings into constituent parts; that is, the loss attributed to diminished motion and the loss attributed to pain. Then, using the AMA tables, he combined the parts (11% + 5% = 14%), then converted this limb evaluation into terms of equivalent disability to the “whole person” (14 percent to the upper extremity equals 8 percent to the body). His report explains the usual process of evaluation:

I will first rate the shoulder impairment to the right upper extremity then convert the findings to the whole person and combine this with the cervical spine impairment. ... By reason of impairment to the right shoulder he has 11% for loss of motion and 5% for. pain and sensory disturbance .... 14% to the upper extremity is equivalent to 8% to the whole person. If we combine the 8% from the shoulder impairment with the 14% for the cervical spine impairment we then have 21% impairment to the whole person.

Contrast this with Claimant’s medical report by Dr. A. which went straight to a rating “to the whole person,” bypassing the elemental limb rating:

[H]e has sustained ... 13% permanent partial impairment to the whole person by reason of the injury to his right shoulder, as indicated by the AMA Guides.

Insuror argues Dr. A.’s report, using the AMA Guides tables, should be interpreted as follows: the 13 percent impairment should be combined with the seven percent arthritic pain-related impairment (13% + 7% = 19%); the cervical injury should be combined in the same manner (8% + 7% = 14%); then, these two values should be combined to finally arrive at the proper total combined disability of no more than 30 percent, rather than the 35 percent total impairment reported by Dr. A.

Insuror also argues the judge found specifically that Claimant was injured 14 percent to the neck and 15 percent to the right shoulder combined to 29 percent to the body as a whole and these should be combined in like manner in accordance with the AMA Guides. We note the tables reveal a combined disability rating of 27 percent rather than 29 percent as adjudicated. The judge obviously added the two figures rather than combining them using the tables.

These labrynthian calculations and attendant arguments ably demonstrate the need for further clarification of the recently adopted workers compensation rules relative to the AMA Guides. Within the limitations of logic and experience, we shall attempt to so clarify.

Ill

First we note that a shoulder injury is considered an injury to the “whole person.” Lee Way Motor Freight, Inc. v. Highfill, Okl., 429 P.2d 745 (1967); Tidal Oil Co. v. Bolton, 153 Okl. 20, 4 P.2d 736 (1931); and, 85 O.S.1978 Supp. § 22. The cervical injury falls in the same category. Being separate anatomically the doctors must evaluate them separately. The Guides apparently require that constituent elements be combined (in this case limitation of motion disability with disability caused by pain); then, each separately rated injury be combined with all other disabilities found in other parts of the body until a composite “whole body” rating is achieved.

In this case, two separate parts of the “whole body” were adjudicated independently — 15 percent to the shoulder and 14 percent to the cervical spine. Prior to adoption of the AMA Guides, Claimant’s two injuries would have been added together to arrive at his total disability rating. However, for reasons which we cannot logically fathom, the two injuries, when combined according to the Guides, are worth less to Claimant than the same two injuries would have been if incurred in separate accidents, which we find to be an illogical result.

[5]*5We can imagine multiple injuries which, in combination, may create more disability to a claimant than the sum of the constituent disabilities, However, we cannot imagine injuries in combination with each other which

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1982 OK CIV APP 4, 646 P.2d 2, 1982 Okla. Civ. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norwood-v-lee-way-motor-freight-inc-oklacivapp-1982.